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Conservative critics have a long list of objections to gay activist Kevin Jennings, the controversial head of the Education Department's Office of Safe and Drug Free Schools. But the most contentious, and emotional, issue in the Jennings affair concerns a 1988 incident in which Jennings, then a high-school history teacher at Concord Academy in Massachusetts, was approached by one of his students, a sophomore boy, who said he had become involved with an older man he met in the men's room of a Boston bus station. Instead of referring the situation to school authorities, Jennings gave the boy advice on condom use.

Critics, like the Family Research Council, have hit Jennings hard over the incident, with some accusing him of condoning child abuse. Jennings' defenders, like the liberal media watchdog group Media Matters, hit back just as hard, accusing the critics of smears and gay-baiting.

What settles the matter, Jennings' supporters argue, is the boy's age. In a speech in 2000, Jennings said the boy was 15 years old, but we now know that he was 16. The boy "was of the legal age of consent at the time of his conversation with Jennings," writes Media Matters. Case closed, as far as Jennings' backers are concerned.

But is it? A check with education authorities in Massachusetts -- including the school where Jennings taught -- shows that his actions would not be acceptable today and could even warrant discipline from school officials and possible legal penalties.

"Today, teachers and staff know that if they were to learn of an encounter of the sort to which you refer, they would be required to report it to the Dean of Students and Community Life and/or the Head of School," writes Pamela Safford, associate head for communications at Concord Academy, in an e-mail response to my questions. Those school officials, Safford says, would be required to file a report with the Massachusetts Department of Children and Families on "any situation involving the safety and well-being of a student."

Safford has no comment on events in 1988, but says that today, "Our practice is to report any circumstance we think may be inappropriate, regardless of the student's age, and let the Department of Children and Families advise on how to proceed."

Concord Academy is a private school; it can make its own policies, within the law. As far as public schools in Massachusetts are concerned, state law requires so-called "mandated reporters" -- that is, teachers and administrators who are legally bound to report any knowledge of abuse -- to notify authorities if they have "reasonable cause to believe that a child under the age of 18 years is suffering physical or emotional injury resulting from abuse, including sexual abuse. ..."

There are consequences for not doing so. "If a mandated reporter fails to report abuse and/or neglect of a child under the age of 18 years old, that individual would be subject to a fine of $1,000," says Alison Goodwin, spokeswoman for the Department of Children and Families.

So much for the it's-OK-because-he-was-16 argument.

Jennings himself says he now "can see how I should have handled this situation differently." But there are other objections to his role as head of the Office of Safe and Drug Free Schools. There is his authorship of the foreword to the 1999 book Queering Elementary Education. There is a life's work singularly focused on bringing the topic of homosexuality into the nation's classrooms, including elementary schools. (In his 2002 book, Always My Child, Jennings advocated schools adopting a "diversity policy that mandates including LGBT [lesbian, gay, bisexual and transgendered] themes into the curriculum.") And then, given the title of the office he heads, there is the fact that he has no experience in school safety or drug prevention.

Still, the Obama administration is squarely behind Jennings. "Kevin Jennings has dedicated his professional career to promoting school safety," Education Secretary Arne Duncan said recently. "He is uniquely qualified for his job and I'm honored to have him on our team." When White House spokesman Robert Gibbs was asked about Jennings, he referred reporters to Duncan's statement. Meanwhile, outside the administration, Jennings' defenders are busy denouncing the "conservative smear machine" in articles like Media Matters' "Right Wing Media Lynch Mob Gay-Baits White House, Facts Be Damned."

Will Jennings survive? The administration seems determined to keep him. But the case against him is becoming more and more serious.

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